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2005(2) Bankmann 113
JHARKHAND HIGH COURT
Hari Shankar Prasad, J.
Mozaffar Alam Ansari alias
M.A. Ansari — Petitioner
versus
State of Jharkhand and
others — Opposite Parties.
Cr.M.P. No. 95 of 2004.
Decided on 15.9.2004.
For the Petitioner:Mr. S. Akhtar, Advocate.
For the Opposite Parties:Mr. P. Kumar, Mr. T. Kabiraj and Mr. S.K. Ughal, Advocates.
IMPORTANT POINT
Order taking cognizance of offence under Section 138 Negotiable Instruments Act and non-bailable warrant of arrest quashed on a finding that statutory notice was issued after expiry of 15 days of intimation for dishonour of cheque.
Headnote:(A) Negotiable Instruments Act, 1881—Section 138—Cognizance taken and non-bailable warrant of arrest issued—Statutory notice for dishonour of cheque much after expiry of period provided under proviso (b) to Section 138—Both order of cognizance and non-bailable warrant of arrest quashed.
Held: It appears that petitioner issued two account payee cheques bearing No. 497934 dated 5.4.2001 and 497935 dated 30.4.2001 respectively for Rs. 6,000 each in the name of the firm of the complainant and both the cheques were deposited in the current account of UCO Bank at Giridih branch for collection and credit in the relevant account. But UCO Bank at Giridih furnished information dated 17.8.2001 and 24-8-2001 about dishonour of the cheques due to insufficiency of the fund in the account of the petitioner. But instead of ssuing notice to the petitioner within 15 days from the date of receipt of dishonoured cheques, the legal notice was sent on 4-4-2002 much after statutory period provided under Proviso (b) to Section 138 of the Negotiable Instruments Act and in the same way, case was filed much after 15 days from the date of receipt of legal notice and, therefore, there is clear cut violation of the provisions as contained in Section 138 of the Negotiable Instruments Act. (Para 4 )
(B)Code of Criminal Procedure, 1973—Section 482—Negotiable Instruments Act, 1881—Section 138—Notice—Statutory notice in respect of dishonoured cheque much after prescribed period of 15 days in violation of provisions contained in Section 138, proviso (b)—Order taking cognizance of offence and non-bailable warrant of arrest quashed. (Para 4 & 6)
Hari Shankar Prasad, J.— This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the entire criminal proceedings initiated as against the petitioner including the Order dated 13.5.2002 passed in Complaint Case No. 443/2002, T.R. No. 797/2003, whereby and whereunder cognizance under Section 138 of the Negotiable Instruments Act has been taken and also for quashing the Order dated 5.6.2003, by which non-bailable warrant of arrest has been issued.
2. Facts giving rise to the filing of this application are that the opposite party No. 2 filed a complaint case bearing Complaint Case No. 443/2002 stating therein that the complainant is the sole proprietor of the firm, which is run in the name and style of Hardware and Machinery Stores. The principal office of business and showroom is situated and located at Muslim Bazar, Giridih, P.S. Giridih and the complainant is the authorised dealer of Generator of the various brand. It is further alleged that on 19.3.2001 accused persons came to the showroom of the complainant and this petitioner contacted the complainant-opposite party No. 2 for purchase of a generator set of 2.2 KVA, Vidhata brand at a price of Rs. 16,500 only. It is further alleged that petitioner paid Rs. 4, 500 to the complainant on the same day i.e. on 19.3.2001 and made a promise to pay the rest of the amount of dues of Rs. 12,000 through two cheques in the name of the complainant against bill No.72 dated 19.3.2001. It is further alleged that bill was duly signed by the accused No. 1 on 19.3.2001 and generator set was taken away from the showroom of the complainant on 19.3.2001. Petitioner issued two account payee cheques bearing Nos. 497934 dated 5.4.2001 for Rs. 6,000 and 497935 dated 30.4.2001 for Rs. 6,000 in the name of the firm of the complainant and both the cheques were to be drawn on SBI, Dhanbad Branch. The complainant deposited the above noted cheques in the current account of UCO Bank, Giridih Branch for collection and credit in the relevant account, but UCO Bank, Giridih, by their written information dated 17.8.2001 and 24.8.2001 had informed and intimated the complainant that there was not sufficient fund in the relevant account of petitioner and as such, both the account payee cheques stood dishonoured and returned back. It is further alleged that complainant-opposite party No. 2 made requests several times for delivery of the amount of Rs. 12, 000 but petitioner did not make payment on one pretext and other and thereafter the opposite party No. 2 issued a legal notice through his advocate under registered cover with A/D on 4.4.2002 and requested the petitioner to make payment within fifteen days from the date of receipt of notice and stipulated period expired but no compliance of the notice was made. Both the accused persons including the petitioner with a common intention to cheat the complainant to the tune of Rs. 12,000, induced the complainant to sell and deliver the generator set and falsely represented that they would pay the dues of Rs. 12,000 through two cheques. Then the opposite party No. 2 filed complaint case under Section 420, I.P.C. and S. 138 of the Negotiable Instruments Act. After inquiry under Section 202, Cr. P.C. cognizance under Section 138 of the Negotiable Instruments Act was taken and thereafter, vide Order dated 23-7-2003, the learned Court below issued warrant of arrest non-bailable against the present petitioner.
3. Learned counsel appearing for the petitioner submitted that Order taking cognizance is completely erroneous as it is against the mandatory provision as provided under the Negotiable Instruments Act. It was further submitted that two cheques for Rs, 6,000 each were given to the opposite party No. 2 dated 5.4.2001 and 30.4.2001 respectively. It is further submitted that both the cheques were presented before the UCO Bank, Giridih, which were dishonoured on 17.8.2001 and 24.8.2001 respectively and information was given to the
